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Friday, October 7, 2011

Some Thoughts about the Insite Decision

The Supreme Court of Canada’s unanimous decision last Friday to order the federal Minister of Health to exempt the Insite supervised injection site from criminal drug laws is one of those heady moments that law professors live for. The case had everything: the Charter’s guarantee of “life, liberty and security of the person”; a pitched federal-provincial battle; the “war” on drugs; and the intimate, daily interactions at Insite that have saved or improved the lives of hundreds of the most vulnerable souls in our society.

At Insite – located in Vancouver’s downtown eastside (DTES) – drug users self-inject under the supervision of health professionals. For five years the federal government exempted Insite and its clients from drug possession and trafficking laws. In 2008, after the Conservative government refused to do so again, Insite’s operators and some of its clients launched the suit that eventually landed them before the Supreme Court of Canada.

The case raised two constitutional issues, one based on the “division of powers” and the other based on the Charter of Rights. The division of powers question concerned whether federal drug laws should apply even where they interfere with provincial health care (since it is generally recognized that treatment of addiction is a health care concern). The Supreme Court unanimously dismissed this argument, concluding that the provincial power over health care is not “immune” from the federal power to create crimes. Although unexciting for everyone except some of the aforementioned law professors (like me), the Court’s resolution of this issue has sounded a welcome note of clarity into an area of constitutional law that, left unchecked, could create undesirable legal vacuums.

The Charter question arose under section 7 which guarantees against “deprivations of life, liberty and security of the person” in ways that violate “the principles of fundamental justice”. Insite and its supporters argued that given the mountains of evidence which showed that Insite had a positive impact on addicts’ health and the surrounding community, the government’s refusal to extend the exemption was, simply, arbitrary (and, therefore, not consistent with fundamental justice). Some of the parties also argued that prosecuting addicted persons for their drug use is unjust because such persons are not really exercising a “choice", building on an earlier Court decision that criminal liability only attaches to “morally voluntary” behaviour). While the Court did not squarely address the issue of choice and drug use, it seemed sympathetic to the idea.

The Court flatly rejected the federal government’s stubborn insistence on maintaining a purely political preference (supervised injection is simply a form of drug use that must be punished) in the face of damaging evidence (supervised injection saves lives and is an integral part of overcoming addiction).

The Court first pointed out that the Controlled Drugs and Substances Act itself permits an exemption for a facility like Insite. Thus, even if in some cases the CDSA might deprive a seriously addicted person (or their health care worker) of “life, liberty and security of the person” the law allows for relief against “unconstitutional or unjust applications of the provision”.

But if the law is consistent with the Charter, the Minister’s decision was not. The purpose of drug laws is, in part, to deter drug use and to prevent harm. The trial judge in this case found that traditional drug laws have done little to reduce drug use in the DTES; that supervised injection reduces risk to users; and that Insite has not contributed to increased drug use or other harms in the community.

Given the overall context, the Minister’s refusal was arbitrary – it bore no relation to the federal law’s underlying purpose. The Court also found that the refusal was “grossly disproportionate” (another violation of fundamental justice) because its negative impact on section 7 rights far outweighed the minimal benefit of enforcing drug laws against Insite and its clients.

Will we see more facilities like Insite? The Court endorsed the trial judge’s findings that supervised injection can be an important part of a drug treatment strategy. Where a different facility provides similar benefits, the government must ensure that any refusal to exempt is consistent with fundamental justice (the government could get Parliament to simply remove the exemption, or even to invoke the Charter’s notwithstanding clause,but these are very remote possibilities).

One reporter asked me about the fear, raised by some of Insite’s critics, that supervised injections could pop up at places like Tim Horton’s. This is nothing more than fear-mongering. Insite is a serious health facility with extensive protocols following explicit provincial guidelines. The Supreme Court made it clear that its decision does not authorize just anyone to set up shop and offer supervised injections.

This is a momentous decision. It is extremely rare for the Court to find that the government has acted arbitrarily (which, after all, connotes behaviour that is capricious and unprincipled). The conclusion of gross disproportionality is also rare, and hints that in future cases a hard-line approach to drugs may be difficult to defend. Equally striking was the fact that the Court actually ordered the Minister to provide the exemption, known as the legal remedy of mandamus. Normally, even when they find executive decisions to be flawed the most that courts will do is render the issue back for reconsideration. The remedy issued here demonstrates that the Supreme Court found the government’s choices to be, simply, indefensible.

Carissima Mathen is a Professor at the University of Ottawa Faculty of Law